2100562 (Migration)

[2021] AATA 1396

2100562 (Migration) [2021] AATA 1396 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100562

MEMBER:Brendan Darcy

DATE:3 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 03 March 2021 at 12:39pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – prescribed fee – validity of review application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), rr 4.10, 4.13

CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration, dated 14 January 2021, to refuse to grant a Bridging E (Class WE) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 18 January 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 4 February 2021. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. On 19 January 2021, the Tribunal emailed the applicant regarding the outstanding fee to be paid within the prescribed period needed to be lodged. The applicant emailed the Tribunal on 1 February 2021 indicating she will undertake to have the fee paid.  No fee was paid within the relevant time limit: 4 February 2021.

5. The Tribunal invited the applicant to comment on the validity of the application for review on 8 February 2021, and to do so by 22 February 2021. Neither the applicant nor anyone on behalf of the applicant responded to that invitation to comment.

6. There is no evidence that the review applicant had any part of the fee at the time of making this decision. Neither is there any fee reduction applications of this review recorded.

7. The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

8. The Tribunal does not have jurisdiction in this matter.

   Brendan Darcy
   Member